Big Pool Holstein Farms, Inc. v. State Roads Commission

• Decision Date: 05 January 1967
• Docket Number: No. 548,548
• Citation: 245 Md. 108,225 A.2d 283
• Parties: BIG POOL HOLSTEIN FARMS, INC. v. STATE ROADS COMMISSION of Maryland.
• Court: Maryland Court of Appeals

Page 108

245 Md. 108

225 A.2d 283

BIG POOL HOLSTEIN FARMS, INC. v.STATE ROADS COMMISSION of Maryland.

No. 548.

Court of Appeals of Maryland.

Jan. 5, 1967.

Joseph F. Padula, Hagerstown (Martin V. B. Bostetter, Hagerstown, on the brief), for appellant.

Thomas S. Glass, Sp. Atty., Frederick (Robert C. Murphy, Atty. Gen., and Joseph D. Buscher, Sp. Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, OPPENHEIMER, McWILLIAMS and FINAN, JJ.

OPPENHEIMER, Judge.

The State Roads Commission of Maryland(the Commission) condemned a portion of the farm land of the appellant(the owner) to construct a segment of a limited access highway.By reason of the taking, a part of the farm, consisting of 83 acres, became non-accessible to the owner.The Commission, over objection, introduced evidence that after the taking it had secured an option to purchase a strip of contiguous land, which would provide adequate access to the landlocked 83 acres.Counsel for the Commission stated to the court that the Commission would exercise the option and would convey the access strip to the owner.The owner contends that the admission of this evidence was prejudicial error on the grounds that the damages caused by condemnation must be assessed as of the time of the taking, that no subsequent change in the circumstances should be considered, and that, in effect, the Commission was attempting to compensate the owner with something other than money.

The property involved is located in Washington County.Prior to the acquisition, the property consisted of two contiguous farms, known as the East and West farms.Each farm had a set of outbuildings and the combined land area was 477 acres.The owner maintained a large dairy herd on the farms.The purpose of the taking was for the construction of Interstate Route 70, which is a limited access highway connecting the Pennsylvania Turnpike with Washington, D. C.Over 36 acres of the owner's property were taken by the Commission for the right-of-way, which is approximately 300 feet wide and cuts through the property in an east-west direction.Prior to the taking, all parts of the farm were easily accessible from the West or main farm.By reason of the taking, the owner was deprived of access from the West farm to the 83 tillable acres of the East farm.The 83 acres were bounded by the segment of Route 70 taken by the Commission, the lands of other property owners; other access was pecluded by the topography of the land.Without access, the only value which the 83 acre tract would have is its saleability to abutting property owners.

The property was taken by the Commission on October 7, 1963.Work on the highway was commenced in March, 1964.The Commission's petition for condemnation was filed in the Circuit Court for Washington County on January 20, 1965.On June 28, 1965, several days before the trial of the case, the Commission obtained an option to purchase a tract of land 50 feet wide and 200 feet long running from the eastern boundary of the 83 landlocked acres to the Big Pool Road.This road is a main artery; there is an interchange or cloverleaf at the intersection of Big Pool Road and Interstate Route 70, near the strip of land on which the Commission obtained an option, by means of which traffic may proceed in all four directions.It is conceded that, if the owner has the use of the strip, the 83 acres will no longer be landlocked and will be entirely accessible.The right-of-way is admitted to be entirely adequate.

Counsel for the Commission told Judge McLaughlin, before whom the case was to be tried, that the State would acquire the access strip at a cost of $1,000 and wished to know whether the owner would accept the right-of-way which the strip would provide.Counsel for the owner stated that he first wished to see the option, as the Commission had not consummated its acquisition.On the second day of the trial, counsel for the Commission advised the court that the option had been secured and a copy delivered to counsel of the owner.At a conference at which all counsel were present, the attorney for the Commission read into the record a statement that the Commission would definitely acquire the access strip.There was only one restriction in the option that no buildings could be erected on the access strip; otherwise it would be owned in fee simple.Counsel for the Commission said that only reason the transaction had not been previously consummated was that the option had been acquired only a few days before the trial; he committed the Commission to the purchase and stated that, after the purchase, the access strip would be conveyed to the owner.

At the trial, Mr. Miley, the State Roads' appraiser, testified that, in his opinion, the damage to the owner's property by reason of the taking was $8,390.Mr. Weber, who, with his wife, owns practically all of the stock of the appellant corporation, put a value of $120,000 on the two farms before the taking, and was of the opinion the taking had cut that value in half.Mr. Seibert, an appraiser for the owner, estimated the damage caused by the taking at $27,214.He thought that the use of the access strip to the landlocked 83 acres would be rather expensive because of the distance which would have to be traveled to the main farm building.Another appraiser for the owner estimated the damage caused by the taking at $25,775.The jury's inquisition was in the amount of $14,000.

The owner moved for a new trial.Its motion was based in part upon the court's admission into evidence of the Commission's offer in respect of the access strip.Judge McLaughlin denied the motion, stating, in a memorandum opinion, that he did so because he had concluded counsel for the owner had objected only because he was not sure that the access strip would be acquired and the right-of-way made available to the owner.The owner contends, in this appeal, that the objection at the trial went to the admissibility of any testimony in respect of the access strip, because the option had been acquired many months after the taking and therefore could not be considered in the determination of damages caused by the taking.

We find it unnecessary to consider the nature and extent of the objection made to the testimony concerning the acquisition of the access strip because, in our opinion, the testimony as to the cost of acquisition of the right-of-way and its effect upon the landlocked 83 acres was properly admitted in any case as relevant to the measure of the damage caused by the taking.

It is true that in condemnation proceedings, the value of the property sought to be condemned and of any adjacent property of the defendant claimed to be affected by the taking is to be determined as of the date of the taking.Code (1957), 1966 Supp.), Art. 33A, §§ 4and5(b).SeeState Roads Comm'n v. Adams, 238 Md. 371, 376-377, 209 A.2d 247(1965).In a case of a partial taking, the value of what is taken is ordinarily to be determined by the difference between the fair market value of the entire tract before the taking and the fair market value of what is left thereafter.City of Baltimore v. State Roads Comm'n, 232 Md. 145, 152, 192 A.2d 271(1963).

However, when the partial taking affects the access to the remaining property, evidence as to the cost of subsequently securing adequate access has a direct bearing on the measure of the damages and, under our decisions, is admissible in the condemnation proceedings.Under the appellant's contention, the measure of damages must be the difference in value between the tract affected with access, and the tract without access.Under this theory, the owner could obtain damages for most of the value of the tract at the time of the taking, even though, after the taking, he can obtain adequate access for a fraction of the amount he has received.Such a windfall is not the fair compensation which the law envisages.

In Webb v. Baltimore & O. R. R. Co., 114 Md. 216, 79 A. 193(1910), the appellants owned property abutting on a public street.The appellee constructed tracks in the street, reducing its width in front of the appellants' property to 10 feet, and raised the bed of the street so that the public could not use it in front of the property.In the trial below, an action for injury to their fee simple property, the plaintiff-appellants offered testimony as to the cost of providing access to the property; the lower court granted a directed verdict for the railroad on the ground that no evidence had been offered of damages to the property sufficient to entitle the appellants to recover.This Court reversed, saying:

'We have given very careful consideration to the case relating to the recovery of damages for cutting off access to one's property, and especially in reference to the character of proof which will warrant recovery in such cases * * *'114 Md. at 228, 79 A. at 195.

'We think it a natural and legitimate mode of estimating the damage.There was evidence tending to show that the construction of the additional track destroyed the right of access to plaintiffs' property on that street, and certainly one legitimate method of ascertaining the resulting damage was...